Because schools may take steps to safeguard those entrusted to their care from speech that can be regarded as encouraging illegal drug use, the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending Frederick.

Morse v. Frederick, 551 U.S. 393 (2007), was a United States Supreme Court case in which the Court held, 5–4, that the First Amendment does not prevent educators from suppressing, at or across the street from a school-supervised event, student speech that is reasonably viewed as promoting illegal drug use.[1]

Chief Justice Roberts, writing for the majority, concluded that the school officials did not violate the First Amendment. To do so, he made three legal determinations: first, that "school speech" doctrine should apply because Frederick's speech occurred "at a school event"; second, that the speech was "reasonably viewed as promoting illegal drug use"; and third, that a principal may legally restrict that speech—based on the three existing First Amendment school speech precedents, other Constitutional jurisprudence relating to schools, and a school's "important, indeed, perhaps compelling interest" in deterring drug use by students.

One scholar noted that "by its plain language, Morse's holding is narrow in that it expressly applies only to student speech promoting illegal drug use."[3] She adds, however, that courts could nonetheless apply it to other student speech that, like speech encouraging illegal drug use, similarly undermines schools' educational missions or threatens students' safety. "Further, Morse arguably permits viewpoint discrimination of purely political speech whenever that speech mentions illegal drugs—a result seemingly at odds with the First Amendment."[3]

On January 24, 2002, students and staff at Juneau-Douglas High School in Alaska were permitted to leave classes[5] to watch the Olympic Torch pass by. Joseph Frederick, who was late for school that day, joined some friends on the sidewalk across from the high school, off school grounds.[6] Frederick and his friends waited for the television cameras so they could unfurl a banner reading "BONG HITS 4 JESUS". Frederick was quoted as saying he'd first seen the phrase on a snowboard sticker.[7] When they displayed the banner, then-principal Deborah Morse ran across the street and seized it.[nb 1]

Morse initially suspended Frederick for five days for violating the school district's anti-drug policy, but increased the suspension to ten days after Frederick quoted Thomas Jefferson.[nb 2] Frederick administratively appealed his suspension to the superintendent, who denied his appeal but limited it to the time Frederick had already spent out of school prior to his appeal to the superintendent (eight days). Frederick then appealed to the Juneau School Board, which upheld the suspension on March 19, 2002.

On April 25, 2002, Frederick filed a civil rights lawsuit (under 42 U.S.C. § 1983) against Morse and the school board, claiming they violated his federal and state constitutional rights to free speech.[2] He sought a declaratory relief (for a declaratory judgment that his First Amendment rights had been violated), injunctive relief (for an injunction to remove the reference to the ten-day suspension from his school records), and monetary awards (compensatory damages, punitive damages, and attorney's fees).[9]

First, the Court decided that the incident should be interpreted under school-speech doctrines, even though Frederick was standing across the street, and not on school grounds.[nb 4]

Thus, for Judge Kleinfeld, "the question comes down to whether a school may, in the absence of concern about disruption of educational activities, punish and censor non-disruptive, off-campus speech by students during school-authorized activities because the speech promotes a social message contrary to the one favored by the school. The answer under controlling, long-existing precedent is plainly 'No.'"[12] To reach this determination, the Court inquired whether Frederick's constitutional rights were violated.[nb 5]. The Court, in holding (contra the District Court) that Tinker v. Des Moines Independent Community School District provided the controlling analysis, distinguished Bethel School District No. 403 v. Fraser and Hazelwood School District v. Kuhlmeier. The Court explained:

Fraser holds that high school students' rights to free speech in school are not coextensive with adults's rights, and "pervasive sexual innuendo" that is "plainly offensive ... to any mature person" can be marked off as impermissible incivility within the school context. 12 Fraser focuses upon the sexual nature of the offensiveness in the in-school speech that can be punished, as contrasted with the "political viewpoint" of the speech protected in Tinker. 13 Our case differs from Fraser in that Frederick's speech was not sexual (sexual speech can be expected to stimulate disorder among those new to adult hormones), and did not disrupt a school assembly. Also, it is not so easy to distinguish speech about marijuana from political speech in the context of a state where referenda regarding marijuana legalization repeatedly occur and a controversial state court decision on the topic had recently issued. 14 The phrase "Bong Hits 4 Jesus" may be funny, stupid, or insulting, depending on one's point of view, but it is not "plainly offensive" in the way sexual innuendo is.

Hazelwood School District v. Kuhlmeier is similarly distinguishable. In Kuhlmeier, the Supreme Court held that high school students did not have a First Amendment right to publish articles on pregnancy and divorce in a school newspaper over the principal's objection, where the newspaper was produced in a class on journalism, edited by the journalism teacher as part of the teaching of the class, and paid for with school money. 16 The Court distinguished Tinker on the ground that "the question whether the First Amendment requires a school to tolerate particular student speech—the question that we addressed in Tinker—is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech." 17 This student newspaper was "part of the school curriculum". 18 Exclusion of any First Amendment duty to "promote" a student viewpoint means that a school necessarily retains authority to refuse to "sponsor" speech such as Frederick's, which arguably promotes drug use. 19 Kuhlmeier does not control the case at bar, however, because Frederick's pro-drug banner was not sponsored or endorsed by the school, nor was it part of the curriculum, nor did it take place as part of an official school activity. Kuhlmeier might apply had Frederick insisted on making his "Bong Hits 4 Jesus" banner in art class, but that is not what the record shows. His display took place out of school while students were released so that they could watch a Coca-Cola and Olympics activity.[13]

Starr noted that in Tinker there was no written policy; it was an issue of "standardless discretion" being exercised.[18] That case was said to be concerned with school disciplinary actions "casting a pall of orthodoxy to prevent the discussion of ideas".[19]Justice Souter remarked that 'Bong Hits 4 JESUS' "sounds like just a kid's provocative statement to me".[20] Starr responded by saying "the key is to allow the school official to interpret the message as long as that interpretation is reasonable."[21]

Deputy Solicitor-General Edwin Kneedler spoke on behalf of the U.S. government in support of the petitioner. He said: "The First Amendment does not require public school officials to stand aside and permit students who are entrusted to their supervision and care to promote or encourage the illegal use of drugs."[22] He cited the cases of Board of Education v. Earls and Hazelwood v. Kuhlmeier in his favor.

Douglas K. Mertz, of Juneau, Alaska, for the respondent opened, "This is a case about free speech. It is not about drugs." Chief JusticeJohn Roberts responded: "It's a case about money. Your client wants money from the principal personally for her actions in this case." Mertz emphasized that the torch relay was not school-sponsored; that he had not stepped on school property at all before unfurling the banner; that "BONG HiTS 4 JESUS" was intended to be—and was regarded as—purely a humorous message; and that the unfurling of the banner did not cause any disruption. Based on these facts, he concludes, his case "does not present the issue of school authority over student expressions on campus or in a school-sponsored activity".

Starr rebutted. He cited Vernonia School District 47J v. Acton and Board of Education v. Earls as cases demonstrative of the Court's strong past stances on matter related to combating the "scourge of drugs". In closing and in summary, he said:

To promote drugs is utterly inconsistent with the educational mission of the school. The court has spoken more broadly with respect to the need to defer to school officials in identifying the educational mission. We know that there are constitutional limits (to lawful political expression). Those limits are captured in Tinker. A passive pure political speech that reflects on the part of the school board a standardless discretionary effort to squelch any kind of controversial discussion, that casts a pall of orthodoxy over the class room: we are light years away from that.[23]

Chief Justice Roberts, writing for a plurality of four justices, concluded that the school officials did not violate the First Amendment by confiscating the pro-drug banner and suspending the student responsible for it. After reciting the background in Part I of the opinion, in Part II he determined that "school speech" doctrine should apply because Frederick's speech occurred "at a school event"; Part III determined that the speech was "reasonably viewed as promoting illegal drug use"; and Part IV, inquired whether a principal may legally restrict that speech, concluding that she could—under the three existing First Amendment school speech precedents, other Constitutional jurisprudence relating to schools, and a school's "important—indeed, perhaps compelling interest" in deterring drug use by students.

First, Roberts determined that the Court should analyze Frederick's speech under the comparatively strict doctrine of "school speech"—rejecting "at the outset" Frederick's contention that the case should instead be considered under ordinary free-speech jurisprudence.[24] While conceding that past precedent reflects "some uncertainty at the outer boundaries as to when courts should apply school-speech precedents",[25] Roberts added: "but not on these facts".[24] Roberts reiterated the circumstances, then explained: "Under these circumstances, we agree with the superintendent that Frederick cannot 'stand in the midst of his fellow students, during school hours, at a school-sanctioned activity and claim he is not at school.'"[24]

Next, Roberts determined that the principal's conclusion that Frederick's banner "advocated the use of illegal drugs" was reasonable. Acknowledging that the banner's message was "cryptic", nevertheless it was undeniably a "reference to illegal drugs".[26] In reaching this conclusion, Roberts contrasted "the paucity of alternative meanings the banner might bear" against the fact that the two immediately available interpretations of the words support this conclusion:

First, the phrase could be interpreted as an imperative: "[Take] bong hits ..."—a message equivalent, as Morse explained in her declaration, to "smoke marijuana" or "use an illegal drug". Alternatively, the phrase could be viewed as celebrating drug use—"bong hits [are a good thing]", or "[we take] bong hits".

And even if that second interpretation does not support the principal's conclusions that the banner advocated the use of illegal drugs,

we discern no meaningful distinction between celebrating illegal drug use in the midst of fellow students and outright advocacy or promotion. See Guiles v. Marineau, 461 F.3d 320, 328 (CA2 2006) (discussing the present case and describing the sign as "a clearly pro-drug banner")

Wrapping up this discussion, Roberts rejected the two alternative accounts for Frederick's speech provided in the dissent: first, the dissent noted that Frederick "just wanted to get on television", which it characterized as a "credible and uncontradicted explanation for the message". Roberts rejoined: "But that is a description of Frederick's motive for displaying the banner; it is not an interpretation of what the banner says." Second, the dissent emphasized the importance of political speech and the need to foster "national debate about a serious issue". Roberts rejoined that "not even Frederick argues that the banner conveys any sort of political or religious message"; "this is plainly not a case about political debate over the criminalization of drug use or possession."

First, Roberts recapitulated that student expression may be suppressed only if school officials reasonably conclude that it will "materially and substantially disrupt the work and discipline of the school"—observing however that this doctrine came from a case (Tinker v. Des Moines Independent Community School Dist.) in which the students were engaging in "political speech" in "a silent, passive expression of opinion, unaccompanied by any disorder or disturbance" (wearing armbands, to express "disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them". Id., at 514), and in which "[t]he only interest the Court discerned underlying the school's actions was the "mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint", or "an urgent wish to avoid the controversy which might result from the expression". Roberts commented on this opinion with a quote from Virginia v. Black—that political speech is "at the core of what the First Amendment is designed to protect". 538 U.S. 343, 365 (2003).

Second, Roberts cited Bethel School Dist. No. 403 v. Fraser. The jurisprudence of Fraser is controversial, but Roberts declined to apply or resolve the disputed holding of that case ("We need not resolve this debate to decide this case"); instead, he explained that "[f]or present purposes, it is enough to distill from Fraser two basic principles":

that "the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings" ("in light of the special characteristics of the school environment").[28]

that the "substantial disruption" analysis prescribed by Tinker "is not absolute" (i.e., it is flexible/optional).[29]

Third, Roberts cited the most recent student speech case, Hazelwood School Dist. v. Kuhlmeier. In that case, the Court permitted a school to "exercise editorial control over the style and content of student speech in school-sponsored expressive activities" (declining to publish articles in the school paper that "the public might reasonably perceive to bear the imprimatur of the school") "so long as their actions are reasonably related to legitimate pedagogical concerns". Robert found that this case, though factually distinct, was "nevertheless instructive because it confirms both principles cited above".

Roberts then cited cases that cited Tinker in the course of interpreting the qualified status that other Constitutional rights acquire in schools—Vernonia School Dist. 47J v. Acton, New Jersey v. T. L. O., Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls. In light of these concerns, Roberts devoted his lengthiest analysis to the government's "important — indeed, perhaps compelling interest" in deterring drug use by students.[30] To this point, the opinion cited statistics illustrating the problems of youth drug abuse. It further noted that part of a school's educational mission is "to educate students about the dangers of illegal drugs and to discourage their use".[31] The District Court also noted "peer pressure is perhaps 'the single most important factor leading school children to take drugs.'"[32] The Court's interpretation of Frederick's banner deemed the banner as a type of peer pressure. Based on these concerns, the opinion concluded that the principal's actions were motivated by a "serious and palpable" danger of drug abuse quite different from the amorphous fears of anti-war sentiment at play in Tinker.[32]

In Tinker, the school principal had punished students for wearing black anti-war armbands based on his "undifferentiated fear or apprehension of disturbance" or "mere desire to avoid ... discomfort and unpleasantness".[32] Here, however, the concern about student drug abuse "extends well beyond an abstract desire to avoid controversy".[32] Principal Morse's failure to act against the banner "would send a powerful message to the students in her charge, including Frederick, about how serious the school was about the dangers of illegal drug use".[33] The First Amendment, concluded the opinion, "does not require schools to tolerate at school events student expression that contributes to those dangers".[33]

Justice Clarence Thomas wrote a concurrence that argued that students in public schools do not have a right to free speech and that Tinker should be overturned. Thomas wrote, "In my view, the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools."[34] He praised Hugo Black's dissenting opinion on Tinker and called it "prophetic". Thomas cited the doctrine of in loco parentis, meaning "in place of the parent", in his opinion. He traced the history of public education in America back to its colonial roots. According to Thomas, because originally public schools were intended to substitute for private tutors, public schools could discipline students as they liked and had a far stronger hand in what happened in the classroom. "In short", he continues, "in the earliest public schools, teachers taught, and students listened. Teachers commanded, and students obeyed."[35] He opined that because parents entrusted the care of their children to teachers, teachers have a right to act in the place of parents during school hours. Therefore, teachers should be able to discipline students if necessary. Thomas lambasted Tinker for "usurping [the local school district as a] traditional authority for the judiciary".[36] Thomas believed that Frederick was neither speaking gibberish nor openly advocating drug use, but granting such an impertinence constitutional protection "would ... be to 'surrender control of the American public school system to public school students.'"[36]

Justice Samuel Alito, joined by Justice Anthony Kennedy, wrote a concurrence indicating that he agreed with the majority opinion to the extent that:

(a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as "the wisdom of the war on drugs or of legalizing marijuana for medicinal use".[37]

Alito agreed that Morse did not violate Frederick's First Amendment rights and emphasized in his concurrence that the holding only applies to students who advocate illegal drug use. He opposed the "educational mission" and in loco parentis analysis in favor of a "special characteristic" of schools that he identifies to be ensuring the physical safety of the students. Alito concluded that an exception must be made to the First Amendment free speech guarantee to protect the students; since according to Alito, advocating illegal drugs possibly leads to violence. But Alito insisted that this small reduction of what is protected by the First Amendment is "at the far reaches of what the First Amendment permits".[38]

Justice Stephen Breyer concurred in the judgment in part and dissented in part, arguing that the Court should not have directly answered the First Amendment question in the case, but rather decided it based on qualified immunity. Qualified immunity is an affirmative defense that requires courts to enter judgment in favor of a government employee accused of violating individual rights unless the employee's conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known".[39] Because it was not clear whether the school principal's actions in taking down the banner violated the First Amendment, Breyer would have simply issued a narrow decision indicating that she was shielded by qualified immunity and gone no further.[40]

Justice John Paul Stevens, in a dissent joined by Justice Souter and Justice Ginsburg, argued that "the Court does serious violence to the First Amendment in upholding—indeed, lauding—a school's decision to punish Frederick for expressing a view with which it disagreed."[41] Stevens wrote:

... the school's interest in protecting its students from exposure to speech 'reasonably regarded as promoting illegal drug use' ... cannot justify disciplining Frederick for his attempt to make an ambiguous statement to a television audience simply because it contained an oblique reference to drugs. The First Amendment demands more, indeed, much more.[42]

Stevens criticized the majority decision as one that "trivializes the two cardinal principles upon which Tinker rests", because it "upholds a punishment meted out on the basis of a listener's disagreement with her understanding (or, more likely, misunderstanding) of the speaker's viewpoint".[43] Moreover, he noted, "Encouraging drug use might well increase the likelihood that a listener will try an illegal drug, but that hardly justifies censorship".[43] "[C]arving out pro-drug speech for uniquely harsh treatment finds no support in our case law and is inimical to the values protected by the First Amendment."[44]

Stevens also took issue with the majority's interpretation of the banner as being a serious incitement to drug use:

Admittedly, some high school students (including those who use drugs) are dumb. Most students, however, do not shed their brains at the schoolhouse gate, and most students know dumb advocacy when they see it. The notion that the message on this banner would actually persuade either the average student or even the dumbest one to change his or her behavior is most implausible.[45]

Stevens argued that it would be "profoundly unwise to create special rules for speech about drug and alcohol use", pointing to the historical examples of both opposition to the Vietnam War and resistance to Prohibition in the 1920s.[46] Pointing to the current debate over medical marijuana, Stevens concluded, "Surely our national experience with alcohol should make us wary of dampening speech suggesting—however inarticulately—that it would be better to tax and regulate marijuana than to persevere in a futile effort to ban its use entirely."[47]

Melinda Cupps Dickler, in her article "The Morse Quartet: Student Speech And The First Amendment" in the Loyola Law Review,[3] provided a survey of commentary that followed in the immediate aftermath of the case: Some commentators have suggested that Morse both demonstrated a division among the Justices on student speech rights[48] and continued Fraser's and Kuhlmeier's erosion of students' First Amendment rights.[49] She regards this suggestion as "not surprising" given the outcome of the decision, the plain language of the holding, and the dissenting Justices' charge that the opinion did "serious violence to the First Amendment".[50] She adds that other commentators have asserted that while Morse did not dramatically change the law regarding student speech, it failed to answer any of the questions left by the Tinker trilogy.[51] She notes that these questions—what First Amendment protection is owed to student speech, and how courts should analyze its censorship—are currently significant as schools struggle with the issues of discriminatory student speech or hate speech,[nb 6] and student speech threatening violence.[nb 7] Further, "such questions are always paramount because schools are the training grounds for our nation's citizens and future leaders."[3]

Kenneth Starr, former Dean at Pepperdine University School of Law, and who argued for Morse before the Supreme Court, introduced a symposium about the case[52] noting that Chief Justice Roberts "sought to keep the decision quite narrow", limiting the case "to the issue of public school administrators' ability to keep the educational process free from messages about illegal drugs" and drawing from the Court's existing student speech jurisprudence that "permitted school administrators broad discretion to keep out of the educational environment antisocial messages celebrating drug use".[52]

Leading constitutional law scholar Erwin Chemerinsky participated in the same symposium, exploring how this decision would be understood and applied by school officials, school boards, and lower court judges. He suggested that the opinion was misguided and—from a First Amendment perspective—highly undesirable, arguing that the decision cannot be justified under existing First Amendment principles, that it could be seen as authorizing punishment of students for speech that is deemed distasteful or offensive, even just juvenile. However, he noted Justice Alito's concurring opinion, which suggests that the majority opinion might be exceedingly narrow and based on a very unusual factual context; Chemerinsky noted that if Justice Alito's opinion is seen as defining the scope of the holding, then the case establishes only the power of schools to punish speech encouraging illegal drug use rather than giving school officials great discretion to punish student speech. Thus, despite the fact that Morse v. Frederick is consistent with decisions from the Supreme Court and lower federal courts over the last two decades, his hope is that Chief Justice Roberts's majority opinion will be read through the prism of Justice Alito's concurring opinion, thereby having little effect on the already very limited First Amendment rights of students.[52]

Melinda Cupps Dickler noted that "The few courts that have discussed Morse have disagreed about the breadth of its holding,"[3] supporting this claim with the following citations:

Compare Lowery v. Euverard, 497 F.3d 584, 602 (6th Cir. 2007) (Gilman, J., concurring) (noting that Morse's holding is narrow), and Layshock v. Hermitage Sch. Dist., 496 F. Supp. 2d 587, 596-97 (W.D. Pa. 2007)[53] (iterating that Morse did not alter the Tinker framework), with Boim v. Fulton County Sch. Dist., 494 F.3d 978, 9984 (11th Cir. 2007) (holding that Morse's holding is broad). The Layshock court stated that Morse did not change the basic framework established by the Tinker trilogy, which it described as a scheme in which Fraser and Kuhlmeier are exceptions to Tinker's general rule. Layshock, 496 F. Supp. 2d at 596. Significantly, however, the court cited to both Morse and Tinker as requiring courts to defer to school officials' decisions about punishing student speech. Id. at 597. On the other hand, the court also accepted Justice Alito's concurring argument in Morse when it held that Morse does not permit school officials to regulate student speech merely on the basis that it is incompatible with the schools' educational missions. Id. at 599.

By contrast, the Eleventh Circuit extended Morse's rationale about illegal drugs to the context of student speech that is "construed as a threat of school violence". Boim, 494 F.3d at 984 (upholding the suspension of a high school student for a story labeled as a "dream" in which she described shooting her math teacher). Moreover, the court concluded that Morse supports the idea that student speech can be regulated where "[in] a school administrator's professional observation ... certain expressions [of student speech] have led to, and therefore could lead to, an unhealthy and potentially unsafe learning environment". Id. at 983 (quoting Scott v. Sch. Bd., 324 F.3d 1246, 1247 (11th Cir. 2003)). Some commentators predict that courts will extend Morse to further restrict protection for student speech. See, e.g., Hilden, supra note 12 (discussing Wisniewski v. Bd. of Educ. of Weedsport Cent. Sch. Dist., 494 F.3d 34 (2d Cir. 2007)); see also infra text accompanying note 17 (providing further discussion of Wisniewski, in which the Second Circuit cited to Morse, but applied Tinker).

The U.S. Supreme Court decision did not resolve all of the issues in the case. Frederick claimed his speech rights under the Constitution of Alaska were violated, and the issue was argued in front of the Alaska Court of Appeals in September 2008.[60] However, the school district agreed to settle out of court before the judges reached a decision. In November 2008, the district paid Frederick $45,000 to settle all remaining claims and agreed to hire a neutral constitutional law expert to lead a forum on student speech at Juneau-Douglas High School by the end of the school year.[60]

The original "Bong Hits 4 Jesus" banner now hangs in the First Amendment gallery of the Newseum in Washington, D.C.[61]

There was disorder at the torch passing, but the uncontradicted evidence is that it had nothing to do with Frederick and his fellow sign-holders. Coca-Cola handed out samples in plastic bottles, and students threw them at each other. Students threw snowballs. Some students got into fights. But Frederick and his group did not participate in these disorders, saving their [*1116] energy for what they hoped would be their nationally televised sign display. And, the disruption that took place occurred before the display of the banner, so it could not have been caused by it.

In subsequent days, there was some pro-drug graffiti in the high school that the principal thought was "sparked" by the banner, but the principal did not rip down the sign at the rally because she anticipated or was concerned about such possible consequences. When Principal Morse crossed the street from the school and confronted Frederick about the banner, he asked "What about the Bill of Rights and freedom of speech?" She told him to take the banner down because she "felt that it violated the policy against displaying offensive material, including material that advertises or promotes use of illegal drugs", and she grabbed it from him and crumpled it up.[8]

Frederick says that the principal initially told him that he was suspended for five days, but when he quoted Thomas Jefferson to her, she doubled it. The principal says that she does not remember whether he quoted Jefferson to her, but that was not why the suspension was ten days. Frederick says that an assistant principal told him that the Bill of Rights does not exist in schools and does not apply until after graduation, but Principal Morse says that the assistant principal "made some remark to the effect that students do not have the same first amendment rights as adults".[4]

^The Court also ruled that, if Frederick's constitutional rights had been violated, Appellees had qualified immunity.

One amicus, Drug Policy Alliance, argues that we should analyze this not as a student speech case, but simply as speech on a public sidewalk. That would make the case analogous to a student having an after-school job at a video store that rents out Cheech and Chong tapes, or a student driving a car on public streets with a "Bong Hits 4 Jesus" bumper sticker. Were this factually such a case, the law would be easy indeed, but the facts established by the submissions on summary judgment make this a student speech case. Even though Frederick never got to school that morning, that was only because he got stuck in his driveway because of the snow. School had started and the students were released to watch the Olympic torch pass. And even though supervision of most students was minimal or nonexistent, the school could have supervised them more if it chose to, as it did with the gym class and perhaps the pep band and cheerleaders. Frederick was a student, and school was in session.

There is no genuine issue of fact material to the decision. Frederick's display was not in a class. Frederick and the other students who displayed the sign did not participate in any of the disorderly conduct of the students who threw snowballs or plastic Coca-Cola miniature sample bottles. The school principal and school board do not claim that the display disrupted or was expected to disrupt any classroom work. They concede that their objection to the display, and the reason why the principal ripped down the banner, was not concern that it would cause disruption but that its message would be understood as advocating or promoting illegal drug use. Frederick says that the words were just nonsense meant to attract television cameras because they were funny. We nevertheless proceed on the basis that the banner expressed a positive sentiment about marijuana use, however vague and nonsensical.[12]

Because this is a section 1983 case in which the Appellees asserted qualified immunity, we are required to proceed in accord with Saucier v. Katz and determine first whether Frederick's constitutional rights were violated. This is an "as applied" challenge, not a "facial" challenge. Frederick argues that his rights were violated as the regulations were applied to him. Under Tinker v. Des Moines Independent Community School District, they plainly were.

It is currently a significant issue whether some viewpoint discrimination in schools is necessary to protect students from discriminatory student speech criticizing their race, sexual orientation, religion, or other protected personal characteristics. See, e.g., Kathleen Hart, Note, Sticks and Stones and Shotguns at School: The Ineffectiveness of Constitutional Anti-Bullying Legislation as a Response to School Violence, 39 Ga. L. Rev. 1109, 1128-34 (2005) (discussing recent cases challenging schools' anti-discrimination, anti-harassment, or dress code policies on First Amendment grounds); Justin T. Peterson, Comment, School Authority v. Students' First Amendment Rights: Is Subjectivity Strangling the Free Mind at Its Source?, 3 Michigan State Law Review 931, 964-77 (2005) (proposing a five-part "viewpoint neutral rule" for student speech that incorporates parts of Tinker, Fraser, and Kuhlmeier, and prohibits hate speech under Fraser's offensiveness prong); see also Cindy Lavorato & John Saunders, Commentary, Public High School Students, T-Shirts and Free Speech: Untangling the Knots, Educ. Law Rep., July 13, 2006, at 1, 6-11, available on Westlaw at 209 Ed. Law Rep. 1 (discussing recent federal appellate court decisions of First Amendment challenges by students to disciplinary actions for wearing t-shirts proclaiming homophobic, racist, or anti-religious messages).[3]

Known as the "true threat" doctrine, this area of student speech law became particularly relevant after the occurrence of student-conducted shootings at various U.S. schools, such as Columbine High School. These tragic events led to a significant number of cases and articles on the subject of school violence. For example, in Wisniewski, a student was suspended after school officials learned of an instant messenger icon he had created that depicted the shooting of his English teacher. 494 F.3d at 35. In one of the few decisions citing to Morse, the Second Circuit declined to consider whether the true threat doctrine was relevant, and instead applied Tinker's substantial disruption test. Id. at 38–39. The court held that the school did not violate the student's First Amendment rights by suspending him because it was reasonably foreseeable that the icon would come to school officials' attention and cause a disruption at school. Id. at 39–40.

For a discussion of the true threat doctrine's application to student speech, see Andrew P. Stanner, Note, Toward an Improved True Threat Doctrine for Student Speakers, 81 NYU Law Review, 385 (2006). For additional discussion of the true threat doctrine, see generally Richard Salgado, Protecting Student Speech Rights While Increasing School Safety: School Jurisdiction and the Search for Warning Signs in a Post-Columbine/Red Lake Environment, 2005 BYU Law Review, 1371 (citing to many articles on the true threat doctrine); Jennifer E. Rothman, "Freedom of Speech and True Threats", 25 Harvard Journal of Law & Public Policy 283 (2001) (arguing for expansion of the circuit courts' traditional one-prong "reasonable listener" or "reasonable speaker" test for determining whether speech constitutes a true threat by proposing the addition of (1) subjective intent, and (2) actor prongs).[3]

Frederick says that students were simply released from school so that they could watch the privately sponsored Olympic Torch being carried through a public street, and a student affidavit he submitted pointed out that the students did not have to obtain parental permission slips to be released, as is the routine for field trips and other supervised events off the school premises. Principal Morse says that the release was "an approved social event or class trip", noting that the pep band played as the torch passed the school, the cheerleaders were out in uniform to greet the torch-bearers, and teachers supervised.[4]

^Here, Roberts cited Hazelwood School Dist. v. Kuhlmeier, 484U.S.260, 271, n. 4 (1988) (disagreeing with the proposition that there is "no difference between the First Amendment analysis applied in Tinker and that applied in Fraser", and noting that the holding in Fraser was not based on any showing of substantial disruption).

^See, e.g., Linda Greenhouse, "Vote Against Banner Shows Divide on Speech in Schools", The New York Times, June 26, 2007, at A18, available at 2007 WLNR 12010165 (describing the Court as "deeply split").

^
For example, compare: National Review Online, A Bong Hit to Free Speech, Posting of David French to Phi Beta Cons, http://phibetacons.nationalreview.com/post/?q=ZDUxMjJkZWVmZTBhMjFkYjIwZWU2ZGZiZGRiMjdlM2Q[permanent dead link] (June 19, 2007, 1219 EST) (arguing that although Morse seems narrow, it "dramatically expands the scope of state authority over the speech of school children"), and Julie Hilden, The Supreme Court's "Bong Hits 4 Jesus" First Amendment Decision: How Its Betrayal of Free Speech Principles May Have Influenced a Recent Federal Appellate Decision, FINDLAW, July 9, 2007, http://writ.news.findlaw.com/hilden/20070709.html (arguing that Morse will influence courts to further curtail student speech rights), with Opinio Juris, On Winning, Losing, and Things InBetween: A (Preliminary) Comparative Legal Analysis of Morse v. Frederick, Posting of Ronald Krotoszynski to "Archived copy". Archived from the original on September 3, 2009. Retrieved April 13, 2010.Cite uses deprecated parameter |deadurl= (help)CS1 maint: archived copy as title (link) (July 18, 2007, 0021 EST) (noting that the media has generally regarded Morse as "a loss for advocates of student speech rights", but arguing that Morse is "more about the culture wars over drugs, sex, and rock and roll than a fundamental rethinking of whether Tinker makes sense in the contemporary public schools").